United States v. Caesar

GaeRett, Judge, delivered the opinion of the court: The merchandise in this case consists of lace known as Alengon lace, and the appeal relates to its classification. It was assessed by the collector, under the first portion of paragraph 1430 of the Tariff Act of 1922, at 90 per centum ad valorem. The importer made protest, claiming the articles to be dutiable as embroideries, not specially provided for, at 75 per centum ad valorem, under the second part of said paragraph. The Customs Court sustained the protest and the Government has appealed to this court. It appears that Alengon lace is the name given to a particular article which is produced by having certain stitching upon an existing design. The article upon which this stitching is done is a usable láce before being so stitched, and is known as shadow lace. It becomes of the type known as Alengon lace only by reason of the stitching upon the design. The opinion of the Customs Court, prepared by Mr. Justice Tilson, is quite an elaborate one and reviews at length a number of tbe decisions which have been rendered by that court and this, arising under the perplexing language of paragraph 1430. In the concluding part of the opinion it is said: The merchandise in question, it seems to us, falls clearly within the definition of “embroidery,” as adopted by the-courts. Regardless of the character of the machine used, or the nature of the stitch employed, that the forms, figures, de [108] signs, or patterns on the lace in question are produced by means of needle and thread upon an otherwise completed textile, is clearly established by the record. An inspection of the samples in evidence is sufficient to demonstrate, even to the lay eye, that these forms, figures, designs, or patterns are decorative and ornamental. Therefore, on the record presented, following the authorities cited and quoted, and for the reasons stated herein, we hold the so-called Alengon lace in question to be embroidered, and under the authority of United States v. Smith, 12 Ct. Cust. Appls. 384, T. D. 40554, Pustet v. United States, 13 Ct. Cust. Appls. 530, T. D. 41396, and United States v. Field, 15 Ct. Cust. Appls. 254, T. D. 42263, properly dutiable as embroidered articles under the latter part of paragraph 1430 of the Tariff Act of 1922, at the rate of 75 per centum ad valorem, as claimed by the plaintiffs. The Government has assigned as error the refusal of the trial court to admit certain testimony, including that of certain witnesses called “to show the commercial distinction between stitches outlining a pattern and embroidery.” We think there was no error in this. In Kotzin Bros. et al. v. United States, 14 Ct. Cust. Appls. 99, 104, T. D. 41589, this court said: We are of opinion that by the use of the language “by whatever name known” in paragraph 358 [act of 1913], supra', the Congress intended, for the purposes of that paragraph, to prevent the application of the rule of commercial designation. It was plainly intended, we think, by the phrase “by whatever name known” to include within the paragraph all embroidered articles commonly or commercially so known, except such as were more specifically provided for. The correctness of this rule was specifically recognized in the more recent case of Robinson-Goodman Co. (Inc.) v. United States, 17 C. C. P. A. 149, T. D. 43473, wherein we said: If artificial flowers are trimmings or ornaments within the meaning of paragraph 1430, the fact that they are known in commerce and trade as artificial flowers and not as trimmings or ornaments would be immaterial, for in such case the language “by whatever name known,” etc., would be sufficient to bring them within the provisions of paragraph 1430. The issue in the latter case lay between paragraphs 1430 and 1419, and proof of commercial designation of “trimmings” was admitted to aid in determining whether the articles fell under 1430. In the instant case the issue is between two parts of the same paragraph, both of which parts carry the same phrase — “by whatever name known.” The other evidence excluded seems to have been directed to the common meaning of certain words and phrases, and we do not think its exclusion constitutes reversible error. “Evidence of common meaning is admissible but acts only as an aid to the memory and understanding of the court. The court is not obliged to accept it.” Vide United States v. Ben Felsenthal & Co., 16 Ct. Cust. Appls. 15, 18, T. D. 42713, and cases therein cited. It appears that the particular type of lace known as Alengon lace is produced by a certain stitching upon the design of another type of [109] finished lace, and without the stitching it would not he Alengon lace. The Government insists that this stitching consists in the sewing of a cord “outlining the pattern of the lace on the surface thereof,” in some instances by hand and in other instances by machine. The importer insists that it is “simply ornamental stitching and nothing sewn on,” and that the process renders the articles “embroidered” in the sense of the latter portion of paragraph 1430. It appears that the cord effect which is produced by the stitching results from the use of two threads or cords, one being larger than the other, and the method is that which is known as lock-stitching. This being true, we do not think the theory of the Government that it is appliqué work can be sustained in the light of prior decisions by the court. Indeed, were it produced by stitching a cord upon the design by means of thread sewed over and around it, in the ordinary way, for ornamental purposes,. this would not render it appliquéd under the doctrine declared by us in the recent case of United States v. Greenwald’s Linen Importers, 17 C. C. P. A. 241, T. D. 43672, in which we followed the definition of “appliqué” as adopted in our prior decision in United States v. Hamburger Levine Co., 5 Ct. Cust. Appls. 217, T. D. 34382, and reiterated in Loewenthal & Co. v. United States, 6 Ct. Cust. Appls. 209, T. D. 35464. In Greenwald’s case this court, speaking through Judge Lenroot, reviewed a number of decisions involving the use of the word “ap-pliqué,” and held that the handkerchief cases there involved were not appliquéd by reason of having silk cord sewn upon them, the cords not being “cut out of another color or stuff, applied or transferred to a foundation.” We are unable to agree with the Government that the several cases cited by it in. support of its contention upon this point do in fact support it. They, in the main, are decisions by the Board of General Appraisers and no one of them appears to be on all fo'urs with the case at bar. Our conclusion upon this phase of the case does not appear to be contrary to those decisions, and we feel that in any event we should be governed by our own prior decisions, unless those decisions upon reconsideration appear to be erroneous. Another contention of the Government is that since the articles do not become Alengon lace except by reason of the stitching described, such stitching is a finishing operation resulting in lace and not in embroidery. Conceding that the stitching is finishing work for a particular type of lace the fact remains, nevertheless, that it is imposed upon an article which was a finished lace of another type, dealt in as a commercial article, before being so stitched, and the stitching so done is not for utilitarian but for ornamental purposes, and we feel that this embellishment constitutes embroidering in the common meaning of that term. [110] In Neuss, Hesslin & Co. v. United States, 142 Fed. 281, 282, the United States Circuit Court for the Southern District of New York Reid “tidies or covers with open work patterns formed therein, the threads and edges of which have been stitched in ornamental design 'by hand,” to be embroidered. It was there said: The Board has found that these tidies are ornamentally worked by hand with a needle and thread, and this constitutes embroidery. “Embroidery” is defined by the Standard Dictionary to be— 'Ornamental work done with a needle on canvas, cloth, leather, etc., * * 'The work may be done by hand or with machinery, and threads of cotton, silk, silver, gold, etc., may be used; but embroidery is work always added to the completed fabric by means of a needle. The New International Encyclopedia says: The term “embroidery” is always applied to a completed fabric; and the art is thus distinguished from the kindred arts of tapestry and lace making, in which the ornament is part of the structure of the material. Under the authorities it appears that if the stitching done upon the fabric is for the purpose of utility it does not constitute embroidering; if for the purpose of ornamenting or embellishing the-design of a fabric already completed, as appears to be the fact in the case at bar, then it is to be classed as embroidery, such as does not seem- to be provided for other than in the latter portion of paragraph 1430. Vide United States v. Waentig, 168 Fed. 570. The instant case, we think, is clearly distinguishable from the cases of Sloane v. United States, 7 Ct. Cust. Appls. 463, T. D. 37049, and United States v. Field, 10 Ct. Cust. Appls. 183, T. D. 38550, and the opinion of the Customs Court does distinguish them. The two latter cases involve tapestry, and the needlework upon the fabric was to make them tapestry. In the recent case of Ramig & Co. v. United States, 17 C. C. P. A. 365, T. D. 43809, we quoted from what we regarded as the leading prior cases applicable thereto, and it was held that embroidered flouncings composed of net are dutiable at 75 per centum under paragraph 1430 as “embroideries not Specially providéd for,” etc., although flouncings are eo nomine provided for in the first portion of the paragraph. In support of this holding we quoted from the cases of United States v. Goldfrank, 16 Ct. Cust. Appls. 340, T. D. 43081; United States v. Field, 15 Ct. Cust. Appls. 254, T. D. 42263; and United States v. Smith, 12 Ct. Cust. Appls. 384, T. D. 40544. We think the reasoning in those cases is applicable to, and controlling in, the case at bar. The .thorough treatment of the issues in the opinion of the trial court, T. D. 43606, rehders it unnecessary for us to discuss them in detail. The judgment of the Customs Court is affirmed.